Contractors in war zones lose immunity

Bill provision allows military prosecutions

By Farah Stockman, Globe Staff | January 7, 2007

WASHINGTON -- An estimated 100,000 employees of US defense contractors working in Iraq are no longer immune from military prosecutions, because of a little-noticed provision in a 2007 defense spending bill aimed at holding private contractors accountable for crimes committed in war zones.

For the past three years, an unprecedented number of private contractors in Iraq have performed jobs previously reserved for the military, with immunity from military rules that govern troops and from criminal prosecution in Iraqi courts.

The legal loophole caused outrage during the Abu Ghraib scandal in 2004. Soldiers involved in abusing prisoners were sentenced in military courts, but the civilian interrogators working alongside them for Titan Corp. and CACI International, two private firms, faced no punishment.

The 2007 Defense Bill, enacted in October, placed contractors and others who accompany the military in the field under the same set of military laws that govern the armed forces.

"Basically 100,000 contractors woke up to find themselves under the Uniform Code of Military Justice," said Peter W. Singer , a senior fellow at the Brookings Institution who specializes on civilian military contractors and whose article on a defense blog Thursday called attention to the change.

Previously, the code applied to "persons serving with or accompanying an armed force in the field" only during a war, which US courts interpreted to mean a war declared by Congress. No such declaration was made in the Iraq conflict. Now, Congress has amended the code to apply to persons accompanying an armed force during a "declared war or contingency operation."

The amendment, spearheaded by Senator Lindsey Graham, a South Carolina Republican, was the latest in a series of moves by lawmakers to plug legal loopholes that had allowed contractors who had committed crimes overseas to escape justice. A Senate aide said the amendment passed with little discussion. "There was a concern about whether we have an adequate allocation of legal responsibility for contractors," said the aide, who asked not to be identified because he was not authorized to speak to the media. "If they are not subject to Iraqi law, what law are they subject to?"

But the provision might also have unintended consequences, if the military chooses to use its new power to court-martial civilians. For instance, the language in the law is so broad that it can be interpreted as saying that embedded journalists and contract employees from foreign countries would also be liable under the military code. Other punishable offenses under the code include disobeying an order, disrespecting an officer, and possession of pornography -- far less serious than the crimes that Congress envisioned when drafting the bill.

Contractors have yet to react publicly to the changes. A spokeswoman for L-3 Communications, which has sent hundreds of translators to work with the US military in Iraq, said the company could not comment on government policy. Calls to Halliburton, another major US contractor in Iraq, were not returned.

Some military law specialists said the move to allow civilians to be tried in military courts would raise alarm bells with human rights groups and the United Nations, and in US civilian courts.

"I think there should have been some kind of hearing before Congress passed this measure," said Eugene R. Fidell, president of the National Institute of Military Justice, a nonprofit organization in Virginia. "Ultimately, if this power is used, it will create a substantial issue that would likely reach the Supreme Court, and it will put us at odds with contemporary international standards."

Fidell said that US courts have a history of throwing out convictions of civilians who were tried in military courts, including the 1957 case of a wife who killed her husband on a military base.

"There was a period of decades that you could have crimes by US persons overseas that could never be punished," he said.

In 1970, during the Vietnam War, a civilian contractor convicted of larceny in a military court had his conviction overturned because Congress had never formally declared war in Vietnam, and therefore the court-martial had no jurisdiction.

In 2000, in Bosnia, a group of employees from DynCorp International , a Virginia-based security contractor, were accused of stockpiling illegal weapons and participating in a prostitution ring. Military investigators found a home video of an alleged rape and extracted a confession from one of the men, but they were never prosecuted because they were deemed immune from court-martial and from Bosnian laws.

That same year, Congress passed the Military Extraterritorial Jurisdiction Act, which asserts that US federal courts can prosecute civilians working for the Defense Department overseas. But that law was largely geared toward crimes committed by relatives of troops and has never been widely used to prosecute contractors, Singer said.

Congress eventually broadened that law to include all US government contractors, but US civilian prosecutors have been reluctant to take on such cases because witnesses and victims are thousands of miles away in a war zone. The Justice Department team responsible for initiating such charges has not gone forward with any of the nearly two-dozen cases referred by the Pentagon and the CIA, partly because of lack of evidence, according to The New York Times.

Fidell said the Defense Department could decline to prosecute the cases, just as the Justice Department has, even though Congress has given the department the power to do so. Only a handful of contractors have been prosecuted in US courts, mostly for financial crimes under a whistle-blower statute that protects the US government from fraud.